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(Reclaim The Net) — One of the legal battles in the United States that could have major ramifications on speech and censorship is currently playing out in the country’s Supreme Court (SCOTUS), which is considering two related cases – Moody v. NetChoice, and NetChoice v. Paxton.
The laws are currently not enforced because NetChoice managed to secure preliminary injunctions. And regardless of the Supreme Court decision, the claims of the sides involved could still go back to lower instance courts.
An end to shadow banning and banning of accounts belonging to people running for political office are some of the requirements of the laws, as well as moderation policy disclosures.
Both cases now before SCOTUS stem from filings opposing Florida and Texas laws aimed at preventing censorship on social media, which has become increasingly oppressive over the last years – especially where conservatives are concerned, given the liberal-leaning nature of the companies behind social platforms.
But those companies are countering the laws by claiming that it is these two pieces of legislation that are violating the First Amendment – and their protected free speech when it comes to what they consider content moderation, but what those exposed to it see as censorship.
This week the Supreme Court started hearing oral arguments, and while quizzing those involved, its members made remarks regarding the validity of both the laws and the lawsuits against them.
Both opinions that indicate they think states should not regulate online space in this way (some reports suggest this is a majority stance), and that tech giants should not have the ability to influence speech in the way they do, have been heard from the justices.
Trade association NetChoice (and the Computer and Communications Industry Association, CCIA) – whose members include, among others, Amazon, Google, Meta, PayPal, TikTok, Verisign, and X – is bringing up these companies’ rights not only in relation to the First Amendment but also Section 230 of the Communications Decency Act (CDA).
It will be up to SCOTUS justices to interpret how this nearly 30-year-old law, originally in place to protect early internet startups, now applies to tech behemoths.
Another issue is if their influence on speech should be unrestrained, like that of any other private company, or if their reach and power means they have outgrown that status, becoming the digital public square where First Amendment applies (to benefit users), meaning they should not be allowed to censor at will.
Various non-profits and media outlets opposed to the two laws are framing the significance of declaring them unconstitutional as a matter that will shape the future of the internet (in view of Section 230), but also of free speech (in terms of Florida and Texas legislative efforts being accused of undermining it.)
Moody v. NetChoice
[Read the transcript here.]
During the Moody v. NetChoice hearing, Justice Sonia Sotomayor used the same language censorship victims do when they describe the rules imposed on their speech by Big Tech – broad, generalized, unspecific. But Sotomayor was talking about the Florida law.
“This is so, so broad, it’s covering almost everything,” Sotomayor remarked.
“But the one thing I know about the internet is that its variety – variety is infinite. So at what point in a challenge like this one does the law become so generalized, so broad, so unspecific,” the justice added in an exchange with Florida Solicitor General Henry Whitaker, representing petitioners, i.e., the state’s attorney general, Ashley Moody.
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Sotomayor also brought up the law’s constitutionality in terms of platforms being allowed to tackle “misinformation and hate speech,” to which Whitaker responded by suggesting the First Amendment does not cover the kind of “moderation” that these companies carry out.
Several other justices also addressed what they see as the law being too broad, and therefore not sufficiently clear.
Justice Clarence Thomas said the very term, “content moderation,” is one of the points where the legislation fails to be concise, referring to it as – “broad.” But his fellow SCOTUS member Samuel Alito “proposed” one definition.
“Is it (content moderation) anything more than a euphemism for censorship?” Alito asked.
Ketanji Brown Jackson added her voice in favor of the Florida law having a “confusing quality” – saying that it was difficult to differentiate between conduct and speech of social media platforms, as it proposes, and by that same token, hard to determine what activities enjoy First Amendment protections.
Whitaker’s response here was that the law applies only to “content moderation.”
In his opening remarks, the Florida solicitor general argued that the First Amendment is there to prevent suppression of speech, rather than enable it. That is why, he continued, phone companies, regardless of being privately owned, are not allowed to suppress speech they may not approve of.
But, Chief Justice John Roberts sees the First Amendment as a tool to prevent government censorship that cannot be used to influence private companies.
Roberts also said at one point that these companies therefore “can discriminate against particular groups that they don’t like.”
Regarding Section 230 – which lets online services host third-party content without legal liability, Whitaker said that what these platforms are now doing is bad-faith content moderation and that this is what the law prohibits.
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This was a reference to the Section 230 provision that lets companies remove that same third-party content – if it’s done “in the good faith.”
Clarence Thomas wanted to hear about Section 230 and Big Tech assuming an editorial role from the attorney representing NetChoice, Paul Clement. According to Clement, social media companies have the right – in terms of the First Amendment to protect their speech, i.e., “moderation”) to “moderate” in all aspects, including direct messages.
That, he said, includes Gmail deleting accounts of journalists like Tucker Carlson or Rachel Maddow.
But regardless of the merit of this in the narrowly legal sense, the bigger picture of such actions remains controversial.
And NetChoice, which argues the laws are unconstitutional, seems to be particularly keen to avoid a SCOTUS ruling based on the Salerno standard – which sets a high bar for unconstitutionality.
NetChoice v. Paxton
[Read the transcript here.]
As for the challenge to the Texan law (NetChoice v. Paxton) and the arguments heard by the court on Monday, Clement said the legislation’s goal was to prevent viewpoint discrimination – but, he continued, that is a First Amendment right of “editors or speakers.”
According to the attorney, this is “vital” for the platforms to operate, and should the law come into force, they could withdraw from these states.
And at the same time, Clement said his clients, to comply, would effectively bring in more censorship – in his words, “eliminate certain areas of speech entirely.”
Regarding the issue of treating these companies as common carriers, and whether Section 230 would still protect their “editorial speech,” Clement said he “doesn’t think” it would not. And he rejected the validity of considering them to be common carriers.
Justice Jackson was also skeptical about treating Big Tech platforms as common carriers, a stance shared by Chief Justice Roberts.
At one point Justice Neil Gorsuch had this to ask: “So it’s speech for purposes of the First Amendment, your (Clement’s clients’) speech, your editorial control – but when we get to Section 230, your submission is that that isn’t your speech?”
To this Clement responded that this was correct – “as a matter of statutory construction.” He also described the Texas law as “more burdensome” than the one in the EU, brought up by Gorsuch.
Neither specified what they had in mind, but it’s plausible they were referring to the Digital Services Act (DSA).
Previous to the “more burdensome” qualification by Clement, Gorush said that some Texas law provisions seem to be “exactly the same” as those imposed by the EU. And so – if the same Big Tech companies can comply in Europe, why would it be “too much of a burden” to do the same in the U.S., Gorsuch wondered.
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Texas Solicitor General Aaron Nielson clarified that the law would not apply to platforms like Uber and Etsy but covered “classic” social media sites like Facebook and YouTube, and also, based on their size – namely, more than 50 million monthly active users.
The subject of Big Tech-government collusion came up as Biden administration representative, Solicitor General Elizabeth Prelogar, presented her arguments.
Justice Thomas brought up that amicus briefs were filed citing instances of private companies “coordinating efforts” with the government (in the context of speech/censorship).
The question becomes how the First Amendment applies there in terms of, essentially, where private companies end and the government begins.
Prelogar responded by saying that the administration’s arguments here – and in another Supreme Court case, specifically dedicated to the collusion allegations, Murthy v. Missouri – are, “consistent.”
“We of course acknowledge that if the government actually coerces the platforms and takes over their editorial decision making, then the platforms could be deemed a state actor and that would be subject to First Amendment scrutiny,” said the solicitor general.
Needless to say, Prelogar went on to remark that the administration, however, “vigorously” disputes this claim.
Elsewhere, despite the impression being that the justices take a generally unfavorable view of the two laws, observers sympathetic to the Big Tech side of the legal battle are unsure how the case will end, or if a single position will gain the support of a majority.
Reprinted with permission from Reclaim The Net.
Send an urgent message to Canadian legislators urging them to stop Trudeau’s ‘Online Harms Act’